Although prenuptial agreements can help you during your divorce, there is no guarantee that the agreement will hold up in court in its entirety. This is because your partner may dispute some parts of the agreement and petition the court for its rejection. Below are some of the issues the court will consider when determining whether to uphold a prenuptial agreement or not.
Adherence to All State Laws
A prenup is only enforceable if it adheres to all the laws of the state in which it is signed. For example, a prenup that involves an agreement to evade taxes will not be enforceable since tax evasion is a crime. Another example is a prenup with a clause that allows you to avoid child support payments; child support is mandatory. Therefore, you need a lawyer to go over your agreement and assure you of the legality of all the clauses.
Fairness to Both Parties
Your prenup should be fair to both of you. For example, a prenup that guarantees automatic child custody to either of you upon divorce is not fair. Another example is an agreement that restricts the religious rights of either party.
While the two examples above are unfair, there are cases where the unfairness is not that clear-cut. After all, unfairness can be subjective. In such cases, it will be up to the court to determine whether an agreement is fair or unfair.
Each of you needs to be completely honest when crafting your prenup. This is especially true with issues that can affect any of the clauses in the agreement. Say you have an agreement on how to divide marital resources in case of a divorce. If one of you lies about their income or assets, the other can argue that they wouldn't have agreed to the clause if their partner had been honest.
The Willingness of Both Parties
Prenups are voluntary agreements and courts can only accept them if there is no proof of coercion or duress. For example, you may be able to invalidate your prenup if you can prove that your partner threatened you with financial consequences if you didn't sign the agreement.
Be careful with the above issues when drafting a prenuptial agreement; otherwise, the agreement will just be a piece of paper. Of course, you also have the right to defend the agreement if your spouse is disputing it. Consult a firm that works with family law to help you with the agreement.